
^i 



NO TREASON IN CIVIL WAR. 



GEREIT SMITH AT OOOPKK INSTITU'l^E, 



June 8th, 1865. 




jsM 




Class E fa ^^ 

Book LS_iil 



NO TKEASON IN CIVIL WAE. 



SPEECH 



GEKEIT SMITH, 



COOPER INSTITUTE, NEW-YORK, JUNE 8, 1865. 




NEW-YORK: 

FOR SALB D7 

THE AMERICAN NEWS COMPANY, No. 121 NASSAU STREET. 

1865. 



SPEECH. 



SZTStTJECT : Jf either legal tior moral right to try the rebels for treason. The 
tvay to a sure and enduring Peace lies not through perfidy and ven- 
geance, but through justice and love. 

The South, by plunging 'the nation into this horrid War, 
committed the great crime of the age. The North, under the 
persistent urgency of press and pulpit to punish the South for 
treason, is in danger of committing the mean crime of the age. 
Lips and pen so uninfluential as mine, can do but little to 
avert it. What, however, they can do to this end they must 
do. And, then, if this mean crime shall be committed, I shall, 
at least, have the consolation of knowing that I am free from 
all responsibility for it. Moreover, the little that I and the much 
that you can do to avert this danger must be done quickly — 
for the -work of trying prisoners of war for treason is already 
begun. 

All over the North there is clamor for the blood of the lead- 
ing rebels, whom we have captured, and whom we may yet 
captur6. For one, I have no sympathy with this clamor. When 
the South finally and fully submits, let that be the end of all 
bloodshed, and indeed of all punishment. In saying this I, of 
course, have no reference to the assassination of our beloved 
President, nor to the starvation and murder of prisoners. Let 
all merited punishment fall upon those, who are guilty of these 
infamous and infernal crimes. The law of war affords them no 
protection. 

My position is simply, that there shall be no punishment of 
the South for the Eebellion — or, to use another word, no pun- 
ishment of her for treason. I say this, not because she has 



4 NO TREASON IN CIVIL WAR. 

already suffered quite enough — not because her property and 
people are wasted, and she has become little better than one 
desolation. I say it, not because the safety of the North calls 
for no more suffering of the South, and that no valuable inter- 
est at the North can be made more secure by the further suffer- 
ing of the South. I say it, not because the South has not been 
guilty of treason — for she has been. But I say that the South 
should not be punished for treason, because we agreed that she 
should not be. We came, in effect, into this agreement by con- 
senting, reluctantly it is true, to have our "War with her con- 
ducted according to the law of war — by which I mean the law 
of international war. That we consented to have our war so 
conducted is indisputable. We followed other nations, and re- 
cognized in the South the rights of a belligerent. The Supreme 
Court of the United States were unanimous in recognizing 
them. We entered upon, and continued in, an exchange of 
prisoners with her. Innumerable have been our truces with 
her : and, formally as well as . informally, we have negotiated 
with her for Peace. On one occasion we recognized her de facto 
nationality, and its outgrowing rights and dignity, by making 
even the President of the United States and the Secretary of 
State our Commissioners of Peace. Nor did they stand back 
to have hers come to them, humbly and suingly. On the con- 
trary, our Commissioners honored hers by going more than 
half-way to meet them. All this, and other things, including 
especially .our blockade of the Southern ports, prove, beyond 
controversy, that we consented to conduct the War according - 
to the law of war — for it is only under the law of war that 
these things can be. But our agreement thus to conduct the war 
was our waiver of all right, our surrender of all claim, to punish 
the South for treason — was, indeed, our virtual agreement not 
to punish her for it. This is so from the simple fact, that, un- 
der the law of war, there is no treason. I might rest here — 
for already I have proved my case. Already I have proved 
that we agreed to bring the War under the law of war : and 
whether it was proper or improper in us to do so, the agreement 
nevertheless must stand. I will, however, proceed to show that 
it was proper to do so. 

Vattel says: " But when a nation becomes divided into two parties abso- 



NO TREASON IN CIVIL WAR. x 5 

lutely independent, and no longer acknowledging a common superior, the 
state is dissolved, and the war between the two stands on the same ground, 
in every respect, as a public war between two different nations. They de- 
cide their quarrel by arms, as two different nations would do. The obliga- 
tion to observe the common laws of war toward each other is therefore 
absolute — indispensably binding on both parties, and the same which the 
law of nature imposes on all nations in transactions between state and 
state." 

Now, this is precisely our case — as precisely so as if Yattel 
had had us, and only us, in his eye. The Southern half of our 
nation broke away from the Northern half, and became a na- 
tion de facto, with all the machinery of a national government : 
and, like the Northern half, it acknowledged its own authority, 
and no other. The War therefore was to be governed by the 
same rules, that would govern a war between Mexico and 
America. 

But it may be said that Vattel wrote a century ago. The 
more shame then if, in this age of greater light, we cannot rise 
high enough to respond to the wisdom and liberality of teach- 
ings accepted in an age of comparative darkness ! Policies far 
wiser and far more liberal than any inculcated by Vattel we 
should be ready to embrace. 

But if, according to Yattel, our War comes under the law of 
war, how much more does it according to Hallam, the unsur- 
passed publicist of our day ! For he holds that the civil war 
of the seventeenth century, resulting in the execution of Charles 
the First, should have been conducted by international law. 
But how immeasurably less like different nations were the two 
parties in that War than are the two parties in ours ! Hallam 
says : 

" If his (Charles's) adherents did not form as, I think they did not, the 
majority of the people, they were at least more numerous, beyond compar- 
ison, than those who demanded or approved of his death. The steady, 
deliberate perseverance of so considerable a body in any cause takes 
away the right of punishment from the conquerors, beyond what their 
own safety or reasonable indemnification may require. The vanquished 
are to be judged by the rules of national, not of municipal law." 

And how emphatically does Macaulay, another of the largest 
minds of our age, indorse these words of Hallam ! Says Ma- 
caulay : 



6 NO TEEASON IN CIVIL WAR. 

" Mr. Hallam decidedly condemns the execution of Charles ; and in all 
that he says on that subject we heartily agree. We fully concur with him 
in thinking that a great social schism, such as the civil war, is not to be 
confounded with an ordinary treason ; and that the vanquished ought to be 
treated according to the rules, not of municipal, but of international law. 
In this case the distinction is of the less importance, because both interna- 
tional and municipal law were in favor of Charles. 

" He was a prisoner of war by the former, a king by the latter. By nei- 
ther was he a traitor. If he had been successful, and had put his leading 
opponents to death, he would have deserved severe censure ; and this with- 
out reference to the justice or injustice of his cause." 

And tlien how justly and grandly does Macaulay close in 
this connection by saying : 

"•Firmness is a great virtue in public affairs, but it has its proper sphere. 
Conspiracies and insurrections in which small minorities are engaged, the 
outbreakings of popular violence unconnected with any extensive project, 
or any durable principle, are best repressed by vigor and decision. To 
shrink from them is to make them formidable. But no wise ruler will con- 
found the pervading taint with the slight local irritation. No wise ruler 
will treat the deeply-seated discontents of a great party as he treats the 
conduct of a mob which destroys mills and power-looms. The neglect of 
this distinction has been fatal even to governments strong in the power of 
the sword. The present time is indeed a time of peace and order. But it 
is at such a time that fools are most thoughtless, and wise men most 
thoughtful. That the discontents which have agitated the country during 
the late and the present reign, and which-, though not always noisy, are 
never wholly dQrmant, will again break forth with- aggravated symptoms, 
is almost as certain as that the tide_s and seasons will follow their appointed 
course. But in all movements of the human mind which tend to great rev- 
olutions, there is a crisis at which moderate concession may amend, concili- 
ate, and preserve. Happy will it be for England, if at that crisis her inter- 
ests be confided to men for whom history has not recorded the long series 
of human crimes and follies in vain." 

I proceed to quote another authority to show that it was 
proper to have this War carried on by the law of war. It is 
Welcker, a noble patriot and an eminent German publicist. He 
says : 

" His (the leader's) followers are also more or less punishable, as aiders 
and abettors, as long as their number has not grown so large that a sincere 
belief exists that he or they act with the consent of the nation, or that a 
division of the nation has taken place into two hostile camps. In the lat- 
ter case the rebellion becomes civil war : the right has become doubtful, 
and is left, as in the wars between several states, to the decision of an 



NO TREASON IN CIVIL WAR. 7 

almighty judgment [GottesgericJit.] Under such a presumption every 
citizen is bound to declare himself for one or the other party (,according 
to the wise law of Solon he is bound to do it — to go either right or left ;) 
and then neither blame nor punishment can reach him, whatever the result 
of the battle may be. Then there are only Victors and Vanquished — not 
Loyalists and Criminals. And, although it is difficult to state the precise 
moment when Rebellion ceases, and Civil War commences, there neverthe- 
less exists an essential difference between them : and, when the moment 
has arrived, it is then for the victorious party to extend clemency, and even 
no punishment all — for prudence and humanity would dictate such a 
course." 

The only otlier authority I will cite to this end is the New 
American Cyclopedia. The article in it entitled "Treason," 
said, I know not how truly, to have been written by our dis- 
tinguished fellow-citizen, Dr. Lieber, shows the current and the 
conclusion of the authorities on this subject in the following 
few words : 

" No one incurs the guilt of treason by adherence to a King or Govern- 
ment de facto, although that King or Government has but the right of a 
successful rebel, and loses all by a subsequent defeat." 

Wow, with all deference for the authorities I bave cited, I 
nevertheless think it well to justify their conclusion, that a 
civil war comes under the law of war, by adding a few reasons 
to those contained in the citations. 

1st. Where a nation breaks into two parts, and each, a con- 
siderable one, the belligerents on each side are too numerous to 
be treated as traitors, or as any thing else than enemies in war. 
Says Edmund Burke : "I do not know the method of drawing 
■up an indictment against a whole people." Nor would the 
objection to treating them as other than enemies in war be re- 
moved by the victors punishing but a small proportion, and 
pardoning the remainder. To be pardoned for a great crime, 
as for instance treason or piracy, is the next thing to being 
punished for it. And, where great masses fall under the stigma 
of such a pardon, sad must be the effect not only upon them- 
selves, but in some degree upon all mankind. It is a blot on 
the human family. It is a disgrace to human nature. For one, 
I am not willing to have it go over the earth, and down to pos- 
terity, that millions of my countrymen were pardoned traitors. 

2d. It is not only charitable but just to presume that, where 



8 NO TEEASON IN CIVIL WAK. 

vast numbers take a very momentous and responsible step, they 
sincerely and deeply believe tliat tliey have ground for it. 
Moreover, it is proper to believe that they have some strongly 
apparent, if not indeed some real, ground for taking it. 

8d. A very large class of men, who are free to embark in a 
war subject to the liberal and humane provisions of the law of 
war, and whose part in it would go to soften its rigors aud 
control its excesses, and hasten its termination, would never- 
theless refuse to have any part in one, which is a merely 
savage strife. In -all probability we should have lost our 
cause and country, had our Government persisted in refus- 
ing to let this war be conducted by the law of war. The ma- 
jority of our Northern people are too civilized to go into a 
" black flag " and " no quarter" war. But another reason why 
the South would be like to triumph in such a war, is, that such 
a war would fall in with the habits of her half-civilized masses. 

4:th. The only other reason I will give why a civil war, and 
especially one of the wide dimensions of our own, should be 
under the law of war, is that, in the course of it, there has 
been, particularly to the defeated party, quite suffering enough 
without adding to it punishment for treason. In the closing of 
every such war, the voice of compassion exclaims : " Shall the 
sword devour forever?" " Put up thy sword !" In the closing 
of every such war, God says to the destroying angel, as of old 
He said to him on behalf of the decimated and trembling Jews : 
" It is enough : stay now thine hand I" 

But it is held in some quarters that, although the intermedi- 
ate stages of a civil war are under the law of war, its incipient 
and terminating stages are not. Groundless distinction ! How 
utterly groundless we see it to be in the case of our own War ! 
For was it not in the light of its incipient stages, that belligerent 
rights were accorded by us ? Surely it was from what it had 
actually been that the parties to it agreed to conduct it by the 
law of war. The exchanging of prisoners, that was agreed on, 
was a principle which was to operate backward as well as for- 
ward. No longer had either party the right to harm prisoners 
that were taken in the first year, or first month, or first week of 
the hostilities. 

So much in respect to the incipient stages of our War. And 
now for a few words in respect to its terminating stages. Why 



NO TREASON IN CIVIL WAR. 9 

should not tliese also be under the law of war ? Is it because 
of the hint in our Order Number One Hundred, in the year 
1863, that we should hold tbe»fiually vanquished to be guilty 
of treason ? But that hint was quite unworthy of a Govern- 
ment of good faith and good manners. Do the Proclamations 
of Amnesty show that these stages of the war do not fall un- 
der the law of war? But, in point of fact, such Proclamations 
are out of place in civil, as well as international, wars. In 
the case of a mere rebellion or insurrection, there is room for 
the exercise of the pardoning power. But in a civil war it is 
an unwarrantable and offensive assumption. Moreover, this 
Order Number One Hundred, and these Proclamations, are but 
ex-'parte papers, and therefore can not repeal, or, in any wise or in 
any degree, modify the understanding between the belligerents 
to conduct the war according to the law of war. Least of all, 
could they do so whilst the belligerents were continuing to act 
upon that understanding, and neither party had given notice of 
discontinuance to the other. We must remember that it takes 
two to break as well as two to make a bargain. 

The plea, so current, that, having reached the end of the 
War, we may now take prisoners, and try them under the Con- 
stitution, is altogether invalid. We have not yet reached the 
end of the War. For, when we have reached it, we shall 
have no prisoners to try, unless it be those guilty of crimes 
against the law of war — such as assassins and the fiends who' 
are guilty of starving and murdering prisoners, I say, we shall 
have none to try ; — for, in the case of an international or a civil 
war, Peace implies the surrender of the prisoners on both sides: 
ajid for either party to persist in retaining prisoners is to persist 
in continuing the war. Let me here repeat what I have already 
substantially said — that it is only the prisoners in a mere insur- 
rection, or a mere rebellion, who can be tried. The South, 
in her vast uprising, reached the dignity and rights of a party 
to a civil war — though, from the force of habit, and for the 
sake of convenience, we all continue to call her war upon us, 
its later as well as its e'arlier stages, a rebellion. The disturb- 
ance in Ireland, some sixteen or seventeen years ago, not 
amounting to a civil war, the British Government had the right, 
so far as the law was concerned, to try the prisoners for treason. 
But had a considerable part of the people of the British Islands 



10 NO TREASON IN CIVIL WAR. 

risen up against the remainder — say one lialf or one third, or 
even one fourth — it would have been a civil war, and the 
prisoners in it would have beea entitled to all the protection 
provided bj the law of war. That they would have obtained 
such protection, had the Government party been the victor, may 
be confidently inferred from the fact that, in the case of the 
Irish Kebellion referred to, the Government, in its remarkably 
generous and honorable response to the claims of progressive 
civilization, punished but seven of the offenders, and no one 
of them with death. 

But, surely, it is not for Freedom-loving America to take the 
ground, that a civil war should end in the right of the victor to 
hold the finally vanquished amenable to the law of treason ! 
Surely, she would not have had her Washington and Franklin 
and their noble associates held amenable to it, had the Ameri- 
can Revolution failed ! There will, probably, be many more 
civil wars, the earth over : and the vast majority of them will 
originate in the interests of Freedom. Is it then for Freedom- 
loving America to set the precedent, or even to follow the pre- 
cedent, of having civil wars end in the victor's punishing the 
vanquished ? When crowned heads shall, hereafter, succeed, 
as doubtless oftentimes they will, in putting down the parties 
for Freedom in such wars, shall they have the example ot 
America to plead for hanging the leaders of these parties ? 
God forbid ! Hungary and Venice may again arm themselves 
to assert their right to independence ; and may again be unsuc- 
cessful. Shall Austria, in that event, find, in the example of 
America, hennost efl&cient argument and most widely accepted 
justification for a bloody policy toward the vanquished ? If, 
too, oppressed Ireland ( — I call her oppressed, not because I fall 
in with all the popuJar clamor against England concerning her 
relations to Ireland — I call every people oppressed who are com- 
pelled to support a religion, be it even their own — and I call that 
people cruelly and wickedly oppressed, who are compelled to 
support a religion other than their own — ) if, I say, oppressed 
Ireland shall rise up against the British Government with 
as great unanimity as that with which the South rose up 
against us, and shall fail — shall that Government be able to 
find, in the policy of our own, a stronger incitement than in 
any other example to punish the vanquished ? 



NO TREASON IN CIVIL WAE. 11 

But it will be said, that the reason why Washington and 
Franklin should notj in the event of their failure, have been 
punished, is that their cause was just : and that the reason why 
Davis and Lee should be, is that their cause is unjust. Yain, 
however, to save the interests of Freedom and Justice would 
be this distinction ! For the conquering party would have but 
to hold that his is the just and the other the unjust cause 
( — and for this he would require no stronger proof than his 
own word — ) and then he could go straight to hanging the con- 
quered. 

Let it be understood that civil war is, in its last stages, to 
pass from under the law of war and to come under the penal- 
ties of a local constitution or municipal law ; and the law of 
war will no longer be allowed to govern any of the stages of 
civil war. ■ Every civil war will then, from the outset, be an 
internecine strife : will then, from the outset, unfurl the black 
flag and give no quarter. One thing more in this connection. 
Despots will then feel themselves to be far more firmly seated, 
when they shall see the friends of Freedom discouraged by the 
fact, that no other kind of war is left open to them than that 
which is too horrid to be embarked in. Is it for you, America, 
to contribute to this change ? Is it for you, who should be the 
most steadfast and efi&cient friend of Freedom the earth over, to 
be her great betrayer the earth over ? Is it for you to strengthen 
the hands of despots, and to identify yourself with their policies ? 
O my country ! you see not the deep and world-wide injury, 
nor your own unfading infamy, that will come of your let- 
ting the vanquished in this war be punished ! If you did, 
in vain would be all the counsels of vengeance and perfidy. 
K you did, in vain would be the efforts of priests and politicians 
to flatter the President and fire the people at this point. 

Some say that the party, which brings on a civil war against 
a Eepublican Government is, when finally defeated, not enti- 
tled to the humanities of the law of war. This they say, be- 
cause they hold that the right of Eevolution, although recog- 
nized and honored by them under a Monarchy or Despotism^ 
has no existence in a Eepublic — especially in one where suf- 
frage is as general as in ours. Fallacious distinction ! For in 
a Republic, as well as elsewhere, there may be oppressions un- 
endurable and obstinate and successfully defying every remedy 
short of Revolution. How offensive then the doctrine, that 



12 NO TREASON" IN CIVIL WAR, 

the great and sacred right of Eevolution, accorded to every 
other people, is denied to the dwellers in a Eepublic ! 

I need say no more to justify the position that our war — 
every part of it from beginning to end — comes under the law 
of war. Why then "does our Government propose to bring its 
terminations under the Constitution ? Is it because it has the 
power to do so ? Is it because might begets right ? Sure I am 
that our upright Government, with that brave and strong and 
noble patriot Andrew Johnson at its head, is not consciously 
under such unworthy sway. Sure I am that it is not conscious 
of proposing a breach of faith. Nevertheless, sure also am I 
that there could hardly be a more gross, glaring and guilty 
breach of faith, one more disastrous to us and to all mankind, 
than to fling aside the law by which we agreed to conduct the 
"War, and to thrust in the place of it a law by which a vindic- 
tive and bloody spirit against a fallen foe can be gratified. 
Men say that it is not to gratify such a spirit, but to serve the 
cause of justice. But if they are not blind to themselves and 
to the workings of their own hearts, they nevertheless are stone- 
blind to the fact that the cause of justice cannot be served by 
injustice. In order to save life and property from an extermin- 
ating, piratical war, and in order to secure the military services 
of the scores of thousands, who would have shrunk from taking 
part in such a war, and in order, I may add, to save our coun- 
try (,it thereby was saved,) we bargained to conduct the war 
according to the law of war. But, now, when we have reaped 
the advantages of the bargain until we are strong enough to do 
without it, it is proposed that we shall break it ! Said I wrong 
then at the beginning of my speech, that if the South has com- 
mitted the great crime of the age, nevertheless the crime, which 
the North is urged to commit, would be the mean crime of the 
age ? Think you that, had we apprised the South that, in the 
day of our decisive successes, we would unfurl the " black flag " 
and make " death to the captive " our motto — think you that, 
in such case, she would not have instantly unfurled it, and 
refused to take prisoners ? 

I gavS, as one of the reasons for conforming a civil war to 
the law of war, the probability that there must be not only a 
strong sense of right, but also a very plausible show of right 
to move such vast numbers. Emphatically so was it in the 



NO TREASON IN CIVIL WAR. 13 

case of our -war. Emphatically so, not only on the loyal but 
also on the disloyal side. The many millions, who seceded from 
the Union, not only fully believed in the doctrine of State Sove- 
reignty, but they had really a large measure of right to believe 
in it — not because the doctrine is sound — >for in my judgment 
it is utterly unsound — though modesty and justice require me 
to confess that many men, both wiser and better than I, believe 
it to be entirely sound. I hold that they had this large mea- 
sure of right to believe in the doctrine, because of the high, 
authority for it and of the wide prevalence of it. 

Scarcely was our nation organized under the Constititution, 
ere she became divided into two political parties — the Eepub- 
lican and the ^Federal. Eminent leaders in the Republican 
Party, even its preeminent leaders — instance Jefferson and 
Madison — began early to teach that the Constitution favors the 
doctrine of State Sovereignty. Tliat Party was everywhere, 
North as well as Sout^, more or less leavened with it. At 
the South the doctrine came to be generally received. It is 
true, that the attempt of South-Carolina, in the year 1833, to 
reduce it to practice, did not meet with extensive favor any- 
where outside of South-Carolina. It was indorsed by the Na- 
tional Democratic Convention of the year 1852. Nevertheless 
in the judgment of most who held it, a fit occasion for practically 
asserting it had not yet arisen. But, in the first election of Mr. 
Lincoln to the Presidency, the South saw such an occasion — an 
occasion for practically asserting the doctrine of State Sove- 
reignty by seceding from the Union. Hundreds of thousands 
at the North sympathized with her spirit — though it is but just- 
ice to them to say that the great majority of them would have 
preferred that the South withhold herself from violence, and 
from extreme measures for redressing her alleged wrongs. 
It is not too much to say, that this War developed the Demo- 
cratic Party into a State-Sovereignty Party. Amongst the 
many evidences of its having become such a Party is its having 
nominated last year for the Vice-Presidency an open as well as 
an able and upright advocate of the doctrine of State Sove- 
reignty. 

Now, in the light of such facts as these, is it not reasonable 
to admit, that the seceders had some ground for believing in the 
doctrine of State Sovereignty ? Nay, in the light of such facts, . 



14 NO TREASON" IN CIVIL WAR. 

would it be far too much to say that, until now, State Sove- 
reignty has been an open question with the American people? 
But let us thank God, that it is no longer an open question 
with them. It is now decided, abundantly and forever — both 
at the ballot-box and on the battle-field — that the doctrine of 
State Sovereignty, together with secession and all its other off- 
spring, must be given up. So much treasure and blood has 
this doctrine now cost the American people, that they will 
never more have patience with any, who shall continue to ad- 
vocate it. But though the doctrine is not to be borne with in 
the fature, nevertheless may not the hitherto wide-spread belief 
in it amongst both statesmen and people, North and South, be 
allowed to mitigate and excuse, in some small degree, the great 
crime of which the South was guilty in allowing her belief in 
this doctrine to bring this heart-breaking and desolating war 
upon the land ? 

I do, indeed, blame the Davises and Lees and Breckinridges 
for choosing Patrick Henry, Jefferson, Madison and Calhoun, 
instead of Washington, Hamilton, Jay and Webster for their 
teachers at this point. Nevertheless, I am reasonable enough 
to pity as well as blame them. " Considering thyself, lest thou 
also be tempted." ' In their circumstances, you and I would, in 
all probability, have been tempted to do as they did. In all 
probability, we would have come under the teachings and influ- 
ences, which they came under. 

How beautiful and perfect the religion taught by Jesus Christ ! 
I have often thought, that its beauty and perfectness consist in 
nothing so much as in the fact, tliat it has but one rule of con- 
duct, and this rule so simple as to be intelligible to all — to the 
young and the old, the wise and the unwise, the learned and 
the unlearned. Oh ! had we but the heart to apply to the case 
in hand this rule of doing as we would be done by, how quickly 
should we pass kind and generous judgments on the men, who 
have been so evilly and so sadly misled by these great names, 
whose worshipers in the North are so little less numerous 
than in the South ! 

I have not spoken these words of kindness in behalf of our 
subdued enemies to turn off your eyes from their treason, pro- 
vided they are justly liable to prosecution for treason. Bear in 
mind, that I did not refer to this wide-spread belief in the right 
of Secession for the purpose of furnishing an excuse for treason. 



NO TKEASON IN CIVIL WAR. 16 

but only to furnish a reason for bringing and continuing this 
War under the humane and merciful code of war. Neverthe- 
less, I must say that, in the light of their sincere and, so far as 
great names could make it such, authorized belief in the right of 
Secession, we ought, with reluctance rather than with alacrity 
to enter upon this prosecution for treason, even if it be clear 
that there is treason in the case. One thing more, however, do 
I say — and it is that this belief in the right of Secession greatly 
aggravates the meanness and wickedness of the absurd attempt 
to hold men guilty of treason under the law of war. Surely, 
surely, it does not become the North, where also the doctrine of 
State Sovereignty has prevailed so widely, to be eager to pun- 
ish those who have been led by the doctrine into criminal deeds. 
One thing more in this connection. As it was the pro-slavery 
spirit which prompted the South to avail herself of what she 
deemed to be her constitutional right of Secession, and as the 
North is but little if any less responsible than the South for this 
spirit, so here is another reason why the North should be more 
reluctant than eager to punish her for Secession. Then, too, 
there is the crime of starving and murdering prisoners — a crime 
that, our Government must not fail to punish. For that also 
the North' has a share of responsibility, since that also came 
from the pro-slavery spirit. Yes, from this spirit came the 
monstrous crime which finds no precedent and no counten- 
ance in modern Christendom — from this spirit, which, denying 
all rights to the black race, can easily deny whosesoever rights 
stand in its way. I have already substantially said, that the 
North is scarcely less responsible than the South for the genera- 
tion and growth of this infernal spirit. The North has sought 
as earnestly as the South to serve herself of Slavery. She 
as well as the South has ever maintained that the nation is 
bound by her organic law to uphold slavery. Politically, ec- 
clesiastically, commercially, socially, she has upheld slavery. 
For the North then to complain (,and this she cannot do too 
deeply or too constantly,) of this starving and murdering of pris- 
oners, is to complain of what, to no small extent, she is herself 
responsible for; And so, too, by the way, it is of what is in 
part her own work that she complains when she complains of 
the Eebellion — the Eebellion itself having been prompted by 
the pro-slavery spirit, and the North and the South having a 
common responsibihty for that spirit. The crimes of slavery 



16 NO TEEASON IN CIVIL WAR. 

in this land are tlie crimes of tlie North as well as of the South. 
Therefore, for the North to affect horror at these crimes, and to 
hasten to punish them, as if she were entirely innocent of 
them, is a joiece of hypocrisy well illustrated by that of the 
adulteress, who " eateth, and wipeth her mouth, and saith 
I have done no wickedness." The one duty of the North, 
which just now is above any and all her other duties, is to hum- 
ble herself by the side of the South in a common repentance 
for common sins. But if she goes to punishing the South for 
the Eebellion, she will lose all inclination to this duty — ay, and 
all sense of it. The most effectual of all ways for making our- 
selves feel morally whole, and for attaining to the greatest 
heights of self-complacency, is to fall upon others for the sins 
of which we are ourselves guilty. 

And still one thing more in this connection. Whence came 
the assassination of our beloved President? — that crime for 
which we all demand the severest punishment ? The people 
of the South did not call for it. At the time it took place, they 
would have voted, well-nigh unanimously, to retain him in the 
Presidency. For they knew that no man in all the North was 
disposed to deal more kindly by them than was this man, 
whose heart was all kindness. Even for this preeminently 
shocking crime also the North is bound to feel and acknowledge 
her share of responsibility. For it was the pro-slavery spirit, 
that impelled the assassin — a spirit, which dwells in Northern 
as well as in Southern breasts, and which is no less intense in the 
one than in the other. Say what we will to the contrary, and 
be as indignant at the imputation as we please, Booth was the 
product of the North as well as of the South. He was moulded 
as well by Northern as by Southern pulpits, presses, and usages. 
We may depend upon it that there is no worse type of pro- 
slavery at the South than that which, less than two years ago, 
slew, and hung and burnt negroes in this city. Pro-slavery is 
quite as murderous at the North as at the South. Wherever it 
is, it is the worst spirit that Satan ever let loose upon the earth. 
Wherever it comes in contact with the aristocratic spirit, it 
kindles np that spirit into sympathy with itself, and into like- 
ness to itself Aristocracy is set on fire of Pro-Slavery, and 
Pro-Slavery is set on fire of Hell. 

But I may be asked, whether I would have no punishment 



NO TREASON IN CIVIL WAR. 17 

inflicted upon our conquered enemies ? I answer, none what- 
ever. The punishment of these our brothers is already great 
enough — yes, and far too great. I call them our brothers — for 
such they still are. God forgive us, if we hated them when they 
were our rampant foe. But how can lie forgive us if we do 
not love them now, when they are our fallen foe ? "Who doubts 
that, were we animated by the Christ-spirit, we should put 
around them the arms of a pitying and forgiving love ? But 
reason enough why we should not punish them is, that this 
War sprung, as, in effect, I have already said, from their and 
our common political fallacies, and from their and our common 
crimes against down-trodden humanity. Oh no ! our work is 
to repent rather than to punish. 

But in the reconstruction of the rebel States ( — by the way, 
I observe that Attorney-General Speed does not like the word 
reconstruction in this connection : though he will like it as soon 
as he adopts the true theory in the settlement of our national 
difl&culties — ) but in this reconstruction, would I require no 
changes in their laws, systems and usages? I answer, none 
whatever in the way of punishment, and none whatever in the 
way of indemnity for the past. Our being her fellow-criminal 
is sufS.cient to cut us off both from^punishing her and from in- 
demnifying ourselves. All we are entitled to is security for the 
future. If I sit down to a drinking bout with my neighbor, 
and if before we are through, I get a black eye, it is not for me 
to pfosecute him for assault and battery. My only legitimate 
concern in the case is to be safe in the future — in other words, 
to keep myself ever after, and him too, if I can, at a safe dis- 
tance from rum. But almost from the beginning of our national 
existence, the North and the South have been drinking together. 
The blood of the black man has been their beverage. Under 
the maddening draught they have wronged each other, and 
perhaps not far from equally ; and therefore neither should now 
object to letting bygones be bygones. Only let both see to it 
that, in the future, both keep clear of slavery and all its con- 
comitant wrongs. 

In very rare instances punishment may be proper under the 

law of war. Vattel says, that "the conqueror may, according 

to the exigency of the case, subject the nation to punishment 

by way of example." Frequent are the instances in which the 

2 



18 NO TREASON IN CIVIL "WAR. 

conqueror may seek indemnity. Says Yattel : " He undoubt- 
edly may do himself justice respecting the object which had 
given rise to the war, and indemnify himself for the expenses 
and damages he has sustained by it," And, according to the 
same author (,and only what I will now quote meets our case,) 
"he may even, if prudence so require, render the enemy in- 
capable of doing mischief with the same ease in future." It 
was, peirhaps, quite unnecessary to produce an authority for 
what is so certain as the right of the conqueror to insist that 
tlie conquered shall be controlled at points wliere he would 
otherwise be like to repeat his mischief. Having this right, 
how reasonable is it for us, the conqueror in this War, to 
require — 

1st. That there shall be no more slavery in the rebel States. 

2d. That none of their inhabitants shall ever again lose or 
gain civil or political rights by reason of their race or origin. 

3d. That their large landed estates shall be broken up — not 
for the benefit of Northern people, but to be parceled out sole- 
ly to the Southern poor. Our soldiers can not be overpaid ; 
but we are able to pay them without taking, to this end, any of 
the lauds, whicb belong to the Southern people. 

4th. That all debts incurred in aid of the rebellion shall be 
rej)udiated. 

5th. That the loyal, and only the loyal, of the rebel States 
shall be allowed access to the ballot-box. 

Slavery is chargeable with this war. But all these requke- 
ments are necessary to prevent its virtual, if not, indeed, its 
literal reestablishment. In no one of these is any punishment 
or any indemnity exacted. To leave the soil and the ballot in 
the hands of the slaveholders, and neither in the hands of the " 
slaves, would be to leave them in such relations to each other, 
as could not fail to beget oppressions closely resembling, if not 
indeed identical with, those of slavery. From these oppres- 
sions might come the worst of wars — a war of races. For the 
black millions of the South, made by this war immeasurably 
more conscious of their rights and of their power to assert them, 
will not be hereafter the patient beings they have hitherto been. 
Moreover, from the haughty sj)irit and intolerable demands of 
the oppressors might soon proceed another war of the South 
with, the North. 



NO TKEASON IN CIVIL WAR. 19 

IIow blind arc the 'men, who deny that the black man shall 
vote ! They must be born again. In their new birth, and in 
nothing short of it, will they get rid of their caste- spirit and 
their contempt of races. When rid of these depravities, they 
will see, not only that there is no folly so great and no 
ingratitude so base, as is this taking from our black saviours 
the muskets with which they have saved the nation, and at 
the same time, withholding from them the ballot with which 
to save themselves ; but they will also feee that negro suffrage 
is indispensable to save the white loyalists of the South, ay, and 
to save the South. 

Although I would liave disfranchisement for life to be the sen- 
tence in the case of the disloyal leaders, and for not less than ten 
or a dozen years in the case of the disloyal masses, I, neverthe- 
less, would have the disfranchisement cease as soon as compatible 
with the public safety : and this, by the way, would be very 
soon, were the black man allowed the ballot and the soil. For 
then, not only the power of the disloyal to work evil would be 
neutralized, but their disposition to work it would die out with 
their power to work it. Oh ! that the Southern whites were 
w^ise ! How quickly and gladly then would they let the 
black man vote ! Present appearances to the contrary notwith- 
standing, never will the ballot be secure in their own hands 
until the black man is allowed to vote. Never until then will 
there be Peace at the South. Never until then will the black 
man be contented. Nay, never until then will his vengeance 
cease to burn. 

In speaking of the exclusive right of the loyal to the ballot, 
I did not include amongst them those who purge themselves of 
disloyalty by listening to&a few words and kissing a book. No 
such farcical ceremony as that should be allowed the power to 
transmute an enemy into a friend. 

This required repudiation of the Confederate debt may be con- 
strued into a measure of indemnity — but not properly. In this re- 
quirement, we do not make the South pay our expenses in the 
war. But she still is, as she ever has been, a part of our nation ; 
and, as such, she must bear her fair share of taxation to uphold 
this nation. Hence w^e cannot consent to take a second mort- 
gage on her, or even a joint mortgage with any of her creditors. 
We must have as free access to her taxable property and to her 



20 NO TREASON IN CIVIL WAR. 

sources of revenue as to those of the ISTortb. Were she to be 
loaded down with the Confederate debt, she would bo a pauper 
upon our hands, rather than a helper in paying our national 
expenses. 

It will be said, that many of the proud men of the South 
would banish themselves from the country rather than remain 
m such circumstances as these which we propose. But if such 
circumstances are indispensable to the public safety — and how 
can reasonable men deny that they are ? — then, surely, they 
alone would be responsible for flying from them, instead of 
falling in with them. They should harmonize themselves with 
their new and necessary circumstances, instead of complaining 
that they are wronged and punished by them. 

The question is often put — Whether we would like to have 
the North come under restrictions similar to these we would 
impose upon the South ? But the question is too foolish to 
need answering. In the first place, such restrictions are cer- 
tainly not of such vital necessity at the North as they are at 
the South. In the second place, as the North has not rebelled, 
and has not been conquered, the Government has no jDOwer to 
imjDose them on her. 

I do not forget that very many hold, that it is for each rebel 
State to pass for herself upon these points, which I make in- 
dispensable in, her reconstruction. They hold that the rebel 
State is not out of the Union, and that it has never been out of 
it. So do I. But I also hold that she has broken her proper 
relations to the Union, and has broken them so entirely, as 
thereby to have forfeited every constitutional right. Moreover, 
I hold that we, her conqueror, will have the clear right, when 
she renews her relations to it, to see toj it that, in these relations, 
is nothing of fearful peril, either to herself or to the Union. 
For one, I can not admit that the rebel States have been under 
that Constitation during this war. To admit it would be to 
admit that they may be punished for treason. They have been, 
and still are, under a higher law — the law of war. During this 
war, the North and the South have stood to each other under 
the law of war, and under that only. As when in a war with 
England or Mexico, our relations to each other are solely under 
the law of war, so when the Northern half of our nation is at 
war with the Southern half, our relations to each other are sole- 



NO TREASON IN CIVIL WAR. 21 

]y under the same law. AVhea we shall have reached Peace — 
and that cannot be until the terms of Peace are agreed on, and 
punishment is over, and the prisoners on both sides surrender- 
ed — then, and not until then, will the South be again under the 
Constitution. 

It may be thought, from my denying that the rebel States 
are under the Constitution, that I deny the President's right to 
set up a Government in North-Carolina. No, I do not. He 
may, if the necessities of war call for them, set up Governments 
in all the rebel States. They can, however, be none other than 
Military or Provisional Governments, which, with all their ma- 
chinery — though it include even Conventions, Constitutions, and 
Legislatures — must pass away as soon as Peace shall be re- 
stored. For when Peace has come, the law of war, under which 
alone he can set up Governments, has passed away, and his 
Governments have, of course, passed away with it. I admit 
that there are some things done under the law of war, which 
endure when that law has ceased. The freeing of slaves under 
a law-of-war Proclamation is an instance. 

Just here I might be asked whether a President of the United 
States is competent to the final making of terms of Peace. 
Very certainly he is, in the case of a revolt or rebellion:— and 
as certainly he is not, in the case of an international or a civil 
war. But for the sudden collapse of the Confederacy, President 
Johnson would have, as President Lincoln had, a Confederate 
Government with which to negotiate a Treaty of Peace. ^ That 
Treaty, ratified by our Senate, and by the proper authority on 
the other side, would end the war. As, however, things now are, 
I see no way of reaching Peace but through the action of Con- 
gress, whose war-power js absolute. Congress can say on what 
terms the war shall cease— in other words, in what -condition 
the rebel States must put themselves— what restrictions and 
disabilities they must come under— ere the law of war shall 
cease, and ere the Constitution, now held in abeyance by the 
paramount law of war, shall resume its sway over those States. 
But the question of these restrictions and disabilities must be 
settled before Peace is admitted to have come — for, after that, 
it will be too late, since, after that, the Constitution, under 
which all the States are equal, will again obtain over the whole 
South as well as over the whole North. 



/. 



22 NO TREASON IN" CIVIL WAR. 

But, althougli all the States under the Constitution are, under 
it^ equal to each other, nevertheless they may, outside of it^ be 
very unequal to each other. To illustrate : Kentucky and Del- 
aware have the acknowledged constitutional right of holding 
slaves, and of making race or origin the ground of distinction 
in political and civil rights. So, too, will Georgia and Alabama 
have this right, when they shall again come under the Consti- 
tution, unless^ in the mean time, the right, so far as they are 
concerned, shall have been modified or annulled by action 
under the paramount law of war, be it the action of Congress 
or a Presidential Proclamation of Freedom, or both. 

But, to return from this long digression, what possible good 
could come from the adoption of this rigorous and bloody 
policy ? , I see none. As I have already said, it is not necessary 
to the public safety. Such provisions for that, as I have sug- 
gested, would be ample. No good, but, on the other hand, 
great evil would come from the adoption of this policy. It 
would give us a far lower place in the esteem of the civilized 
world. It would exasperate the South. The scent of martyr- 
blood would frenzy her. It might be the means of bringing 
on harassing and wasting guerrilla wars. It would, too, pro- 
duce a wide and deep disaffection at the North — wider and 
deeper than that which has existed, and which the last few 
weeks of President Lincoln's life and the manner of his death 
had done so much to allay and hasten to its termination. And 
would not every trial for treason agitate the whole nation, so 
large a share of whose people believe that we have neither 
moral nor legal right to put upon trial, under the Constitution, 
those whom we have recognized as belligerents, and as under 
the protection of the law of w^ar? And, after all, could a con- 
viction be achieved in any case, where the jury was impartially 
impannelled, and where the accused was defended by counsel 
capable of presenting his case in its noonday clearness, and in 
the invincible strength of its claims ? 

The newspapers say, that Jefferson Davis is to be tried for 
treason — and this,*too, whilst, as yet, the accusation of murder 
envelopes him in its black cloud. Surely, our Government is 
too considerate and too just to put him on trial under such dis- 
advantage. Surely, our Government will dispose of this accu- 
sation, either by retracting it or by trying it, before it puts Mr. 



NO TREASON IN CIVIL WAR. 23 

Dayis on trial for treason. Perhaps, it is held that, as both 
treason and assassination are capital offences, it can make no 
difference to him on which charge he is first tried. But the 
difference will be infinite. . "Were he on trial for assassination, 
very little would the court and jury be like to let his case be 
prejudiced by the charge of treason against him. They would 
not think him guilty of assassination, because 'they suspected or 
were even certain of his guilt of treason. But, were he on trial 
for treason, and the charge of assassination still out against 
him — a charge that, considering its high and commanding 
source, is well-nigh tantamount to proof — he would stand be- 
fore the court and jury in a light little less favorable than that 
of a convicted assassin, and therefore leaving little doubt of his 
being capable of any crime. 

By the way, the assurance that the President will be merciful, 
IS often repeated to reconcile those who are opposed to it to the 
trial of Mr. Davis for treason. I do, indeed, hope that, if con- 
victed of treason, he will not be executed : and I do, indeed, 
hope that, if tried for it, he will be acquitted. *But too late will 
it be after his conviction, or after his acquittal, or even after his 
being put upon trial, to save the honor of our beloved country. 
The loud lamentations over our perfidious arraignment of him 
for treason, which, when the vengeful spirit of the hour has sub- 
sided, will break forth all over the land, can never avail to re- 
deem us from the infamy of violating the agreement in which 
the North and the South covenanted to each other the protec- 
tion of the law of war. In these loud lamentations will join 
the friends of Freedom in all other countries. But, the earth 
over, despots will rejoice that, at a point so vital, America has 
betrayed the cause- of Freedom — that, at a point so vital, Amer- 
ica has identified herself with the policy of despots. 

I glanced at some of the evil consequences of a cruel treat- 
ment of our subdued enemy. How happy, on the other hand, 
would be the consequences of treating him mildly and humane- 
ly ! Thei"eby would we gain the respect and gratitude and love 
of the whole South. Wide would she open her arms to receive 
the thousands of families which would, in that case, immediate- 
ly begin to emigrate to her from the North. And, then, the 
North and the South would, in a very few years, become one 
in interest and o^e also in character. Moreover," a reasonable 



24 NO TREASON IN CIVIL WAR. 

and humane Peace, following this horrid war, would not only 
honor us in the sight of the other nations, but it would con- 
tribute largely to advance the cause of civilization, and to ele- 
vate mankind, the earth over. Such a Peace would make Peace 
Inore beautiful than ever, and War uglier than ever. 

Abraham Lincoln — the great and good Abraham Lincoln — 
has passed away ! Very few men have lived with aims at once 
so high and so disinterested. Still fewer who have cherished 
such aims, have lived to see them so extensively accomplished. 
None will say that his life was in vain. The only question is — 
whether it shall turn out that he has died in vain ? And how the 
American people shall answer this question is of infinite moment 
to themselves, and of no little importance to all mankind. Before 
Lincoln's death there were appalling divisions in the land. The 
North and the South were in deadly strife against each other ; 
and the North was at deep and dangerous disagreement with 
herself. But Lincoln died : — and the American people flowed 
together in the tears of a common sorrow. Lincoln died : — and 
his martyr-blood cemented his divided countrymen into one. 
Alas, however, in this unhajDpy world of ours. Evil is ever 
upon the heels of Good ! Scarcely had we begun to be con- 
scious that we had become one again, ere a spirit sprung up to 
disunite us again. It was the spirit of vengeance. It was the 
mean as well as malignant spirit that can slake its thirst in the 
blood of a subdued foe. It was that dishonorable and treacher- 
ous spirit, which disowns pledges and conventions, and throws 
off the sense of moral obligation, when tempted to it by the 
prospect of advantage. Such is the spirit, which thousands are 
now busy in spreading over the land, and with which they are 
especially intent to imbue the heart of our new President, Oh ! 
when shall America see Peace, if this spirit shall now gain the 
ascendency ! 

We are honoring Lincoln. We have given him such a 
funeral as no other man in all the ages ever had. We are al- 
ready at work to supply, so far as money can supply them, the 
wants of his bereaved and beloved family, and to gratify, so far 
as money can do it, their tastes and desires. And we are plan- 
ning monuments massive and enduring enough to carry down 
the name of Lincoln to the generations, that shall dwell upon 
the earth more than a thousand years hence. But it is in none 



NO TRBASON IN CIVIL WAR. 25 

of these ways that we can most honor him. To do him the 
most honor is, to take his leading characteristics of reasonable- 
ness, patience, gentleness, love, and forgiveness, and make them, 
as far as we can, our own. Pie said to the South : '" Go — and 
sin no more !" And this must we also say to her, if we would 
honor him. Nay, we shall but mock his memory, if we shall 
not say it. As Jesus said to his disciffles, " If ye love me, 
keep my commandments," so also does Lincoln say it to his 
American children. And what are Lincoln's commandments ? 
Love and forgiveness. We all know that, had he lived, his 
Peace Policy would have been one bringing no harm to a hair 
of the head of any of our conquered enemies. Let a Peace 
Policy of that spirit be now adopted, and it will not only bless 
and save our country, and shed blessed and saving influences 
over all the earth and in to. the bosom of all mankind, but it 
will do more to honor Abraham Lincoln than can possibly 
be done by provisions for his family, by funeral pageants, and 
by piles of monumental marble. 



LB-J'.. '03 



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X 



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I. 



